Is There a ‘Legal Geography of War’?

by Kenneth Anderson

Faithful readers of this blog – I mean, very faithful readers, the ones who read every post – perhaps know that I have been interested for a long time in a debate that lurks in the background to the debates over targeted killing and drone warfare. This background debate (one of several important ones embedded in the targeted killing arguments) is whether there is a “legal geography of war.” That’s a term I invented for this paper, but it goes to the question of where and when the laws of war apply, and where it is instead just the Laws of Ordinary Life, in the context of targeted killing. I’ve written a new, short, non-technical, general audience, and no-notes paper that in final form will be published online by the Hoover Task Force on National Security and Law, of which I’m a member. I have just posted the working version of the paper to SSRN. Targeted Killing and Drone Warfare: How We Came to Debate Whether There Is a ‘Legal Geography of War’. I give my own view in a non-technical way, along with discussion of NIAC and self-defense and other things – but in this essay I’m much more interested in giving my sense of how the debate evolved among various interlocutors over the past ten years. Abstract is below the fold.

This brief policy essay examines the evolution of the argument around the proposition that there is a “legal geography of war.” By that term is meant whether the law of war applies only within certain geographically defined areas. It does so in the context of the war on terror and counterterrorism, and specifically in the debates over targeted killing and armed drone warfare.

The essay is a non-technical policy essay that, in final form, will be part of an online volume published by the Hoover Institution Task Force on National Security and Law. Its purpose is not to offer a formal legal argument on the proposition of a “legal geography of war,” but instead to reflect more discursively on how the communities of international law, policy, diplomatic, laws of war, military, intelligence, nongovernmental organizations, and international advocacy have debated this since 9/11. It argues that the Bush administration’s assertion of a global war on terror and its claims of the legal incidents of war on a worldwide basis caused a backlash among its critics, toward geographical constraints on war as formal legal criteria. This was a shift away from the traditional legal standard that war takes place, and the law of war governs, where(ever) there is “conduct of hostilities.”

Drones and targeted killing, insofar as they are asserted within the law of war, particularly strain the legal framework. However, as the Obama administration has moved away from the global war on terror as a means to widen the application of the law of war beyond the conduct of hostilities, legal views appear to be converging once again on the traditional “conduct of hostilities” standard. The essay concludes with a brief, speculative post-script on the meaning of the deployment of armed drones to the Libyan conflict, and how that deployment seems peculiarly to have shifted the perceived acceptability of drone warfare in a way that was not quite so evident when the issue was not humanitarian war in Libya, but the US’s wars of national security in Afghanistan and Pakistan.

(8,000 words, non-technical, and footnote-free for a general lay audience.)

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